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Age Limit Under Surrogacy Act Is Inapplicable If Embryos Frozen Before Law's Commencement:
The , currently sitting at Lucknow, has delivered a significant ruling safeguarding the of couples who initiated fertility treatments long before the enactment of the . The Bench, comprising Hon'ble Justice Shekhar B. Saraf and Hon'ble Justice Abdhesh Kumar Chaudhary, held that the rigid application of cannot invalidate the aspirations of couples who had already crystallized their intention to pursue parenthood by freezing embryos prior to .
The Struggle for Parenthood The petitioners, a couple married for over 17 years, faced persistent hurdles in starting a family. After unsuccessful attempts at natural conception and several failed In Vitro Fertilization (IVF) cycles, the couple successfully preserved three embryos on . Their medical practitioners recommended surrogacy as the most viable path forward given their precarious clinical history.
However, the introduction of the , imposed strict age barriers: a woman must be between 23 and 50 years of age, and a man between 26 and 55, to qualify for surrogacy. With the wife having recently crossed the age of 50, the couple found themselves legally barred from using their own preserved embryos, despite having taken significant steps toward surrogacy years before the law existed.
A Conflict of Statutes and Rights The matter brought to court centered on whether the age restrictions under could be applied retrospectively to a process that effectively began years before the legislation was enacted. Counsel for the petitioners argued that the couple qualified as an "" under and that their rights should be protected under the .
Invoking recent jurisprudence, the petitioners cited decisions from the Delhi and , alongside a crucial judgment from the in , which established that the freezing of embryos acts as the "crystallization" of a couple's intent to pursue surrogacy.
Key Observations The adopted a stringent stance in favor of personal liberty and . Observing that the state cannot, through retroactive application, frustrate the constitutional rights of its citizens, the Court specifically noted:
"The rigid application of age restriction under infringes the fundamental right of the recognized as a part of personal liberty under ."
Reflecting on the ’s reasoning regarding when a surrogacy process "commences," the Bench noted:
"The age restriction under the Act cannot be permitted to operate retrospectively on such intending couples as in the present cases so as to frustrate not just the surrogacy procedure but also their right to have a surrogate child or become parents."
The Court further emphasized that justice requires upholding the intent manifested by the couples:
"Therefore, we hold that the age bar does not apply to intending couples such as the ones we are considering in the present cases."
The Verdict and Its Impact In its final order, the Court permitted the petitioners to proceed with the surrogacy process. The couple is directed to submit a formal application to the Chief Medical Officer (CMO) in Lucknow in accordance with . The CMO has been instructed to grant the petitioners a hearing and issue a reasoned order that respects the ’s guidelines on surrogacy.
This judgment serves as a vital precedent for many couples who find themselves in legal limbo due to the interplay between modern fertility science and evolving reproductive legislation. By prioritizing the constitutional right to parenthood, the has ensured that past actions taken in good faith remain protected from subsequent changes in .
